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In this article, Astha Mishra* of NUSRL Ranchi discusses the right to maintenance of a Muslim Women.

The right to maintenance is available to a Muslim wife under Muslim law even when the wife leaves the society of the husband if it is justified by the circumstances.[1]

In Ameer Ali’s Mohommedan law[2], the right of the wife to maintenance is subject to the condition that she is not ‘refractory’ or does not refuse to live with her husband without reasonable cause.[3]

Moreover, Section 125 Criminal Procedure Code 1973 empowers the Magistrate to order maintenance in favour of Muslim women whose marriage remains intact in law.[4]

Section 125 Criminal Procedure Code, 1973 empowers the Magistrate to order maintenance in favour of women. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance. She may apply for an order for maintenance under Section 125 of the Criminal Procedure Code, in which case the court may order the husband to pay maintenance.

Conditions for Granting Maintenance:

  1. The person must have neglected the claimant or refused to pay maintenance.
  2. Persons claiming maintenance must be unable to maintain themselves. If a person is healthy, adequately educated or capable of pursuing gainful employment no maintenance is given. Wives and elderly parents are generally given maintenance.

Section 125 of the code of criminal procedure provides a right to seek maintenance to all the woman irrespective of caste, religion and creed. Muslim Woman and her children entitled to maintenance u/s 125 CrPC as Section 3(1)(b) of the Muslim Women (Protection of Right on Divorce) Act, 1986 does not affect such right under Section 125 CrPC. Benefits of Section 125 CrPC is available irrespective of religion and it would be unreasonable, unfair and inequitable to deny this benefit to the children only on the ground of their being born of Muslim parents.[5]

WHEN WIFE HAS LEFT WITH A REASONABLE CAUSE AND THUS MAINTENANCE MUST BE PROVIDED TO HER AND THE CHILDREN

Presumption of disharmony when wife leaves matrimonial home with child

When a young lady with a few months old child is unable to bear the blunt of the matrimonial life in the matrimonial home, she cannot be blamed for living apart. In our Indian condition ladies are generally very tolerant and they always consider the normal quarrels as an ordinary wear and tear of matrimonial life. Only when the solution goes beyond hand the women leave her matrimonial the home.[6]

When the wife is subjected to Cruelty and thus has reasonable ground to desert

A wife can refuse to live with the husband on the ground of his cruelty and still claim maintenance from him.[7] For succeeding the claim of cruelty, the wife must prove two distinct elements,

  1. First, ill-treatment complained of, and
  2. Secondly, the result and danger of apprehension thereof.

Any conduct of husband which causes disgrace of wife or subject to a course of annoyance and indignity amounts to legal cruelty. The harm apprehended by the wife may be a mental suffering as distinct from bodily harm, because the pain of the mind may be even more severe than bodily pain.[8]In both the cases, the Court held that the behaviour of the husband amounts to cruelty and the wife is entitled to live separately and claim maintenance.

In Shobha Rani v. Madhukar Reddi[9], while dealing with ‘cruelty’ under Section 13(1)(a) of the Act, this Court observed that the said provision does not define ‘cruelty’ and the same could not be defined. The ‘cruelty’ may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents the difficulty. Thereafter, the Bench proceeded to state as follows: –

“First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused a reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

The father is responsible for the maintenance of infant children

The father is responsible for the maintenance of infant children. There is no obligation upon the mother to suckle child at the breast. It is the duty of the father to provide a wet-nurse who is to stay with or near the mother. He cannot hire his own wife for the purpose but may hire one of his other wives, if any.

The SC court has been of the opinion that the child has a right to demand maintenance from the father even when they are in the custody of a separated mother or any other person.[10]

Under Islamic law, father is liable to maintain his sons till they attain puberty and daughters till they are married and such obligation cannot be denied on the ground of his pecuniary incapacity or indigence so long as he has the ability to earn and no one shares such obligation. He is bound to maintain even if he is indigent or the children are in the custody of the mother.[11] In Mst. Akhtari Begum v. Abdul Rashid[12] where the rights of a four-year-old child was upheld despite the fact the child was in the custody of the mother.

CONCLUSION

Thus after the Shamim Ara judgement, the Magistrate is bound to provide maintenance to Muslim women even though she approaches the court under the personal law.

* 3rd Year National University of Study and Research in Law, Ranchi

[1] Khurshed Begum v. Abdul Rashid, AIR 1927 Nag. 139 at p. 144: 100 I.C. 169.

[2] Vol.II, 5th Edn., p.407

[3] Majidakhatoon Bibi v. Peghalu Mouhammad, P.L.D., 1963 Dacca 583 at pp 588, 589.

[4] Shamim Ara v. State of UP(2002) 7 SCC 518; Iqbal Bano v. State of UP JT (2007) 8 SC 648

[5] : (i) Judgment dated 16.04.2014 of the Supreme Court in SLP (Criminal) No. 4377/2012, Shamim Bano Vs. Ashraf Khan. (ii) Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233.

[6] Fathimath Sahira v. Hakkem, 2010(1) K.L.T.S.N. 89 at p. 89 (C.No.108).

[7] Shabana Bano v. Mohd. Rafiq RLW 2009 (4) Raj. 3158.

[8] 2 Preeti Sharma, Hindu Women‟s Right to maintenance (ed. I, 1990, New Delhi) p. 135. AIR 1984 Kant. 41

[9] (1988) 1 SCC 105.

[10] Mohammad Yusuf v. Zarina 1075 CrLJ 1988; Siddique Sanj v. Parveen 1984 1984 CrLJ 3141; State of Haryana v. Santra (2000) 5 SCC 182.

[11] Baya Bai v. Esmail Ahmad, AIR 1941 Bom 369

[12] Mst. Akhtari Begum v. Abdul Rashid AIR 1937 Lah. 236.

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